E-discovery: Production relief—Know the formats and manage the costs

Understanding the different production formats makes it easier for inside counsel to make better choices and manage their budgets.

Sometimes it’s a struggle to choose the “best” format for production. Some e-discovery experts think it’s best to produce documents in native format, claiming it saves money.

While it’s a safe assumption that native reviews (reviewing documents in native format) will save costs, native format productions are a different story. Depending on the case, a wholesale native production may include hidden costs and case management issues that can add expense and negatively impact strategic goals.

Understanding the advantages and disadvantages of the different production formats will make it easier for inside counsel to make the right format choices and manage their budgets. Some factors to consider are:

Size of the litigation

Your role in the litigation

Applicable litigation and discovery deadlines

Types and scope of ESI to be produced

Native Format Production Benefits

Producing data in native format means producing it in the application in which it was created. A native production gives information about the context of the data because it lets the viewer see what the data looked like when it was created.

Native production can offer up-front savings because there’s no cost to convert the data into a static image like a TIFF or PDF, and these savings tend to hold true if only a small percentage of documents under review actually end up getting produced.

Data contained in certain applications also works better when produced in native format. This includes documents created in PowerPoint and Excel, and databases or structured data sets.

Native production of this type of data allows access to formulas, speaker notes and editing information that is not available in a static production. Also, making useful static images for these sorts of file types can be difficult.

For example, attorneys reviewing documents in native format may have to spend more time looking for and analyzing hidden information. And while static image productions display hidden information like tracked changes or comments, natively produced files do not. Instead, the reviewing attorneys must spend time making sure they find the hidden information that exists in some native files, and then determine its importance and define its location for proper production logging.

Review time can increase in other ways as well. Attorneys may have to wait to launch an application to view a PowerPoint or Word document attached to another document produced in a different native program. This can lead to hours of attorney “wait time.”

Native file productions require a separate process to redact documents that also can increase time costs. Redacting in native format involves identifying the documents that need to be redacted, converting them to a redactable format, redacting them and then reviewing them before production.

Printing documents produced in native format can cost more, too. Printing native files often takes much more time and expertise. For example, when printing native documents, an operator might need to open each file and verify the print settings for the version to be printed before sending it to the printer. This could potentially add hundreds of hours of time to the costs of a large production.

Getting the software needed to actually view data produced in native format sometimes also creates additional costs. If the party doesn’t have the application in which the data resides and can’t use its own tools to get at the data, then they will need to purchase or license the application to see the data. Worse, data produced in unavailable or custom applications can’t be seen at all.

Native Production Case Management Challenges

Native format productions can impact case management and make it difficult to manage evidence during discovery and at trial.

Native files can’t be endorsed with a numbering system or a confidentiality designation. Documents used at depositions will not have a shared, page-level Bates number, and highly sensitive documents can lack necessary confidentiality designations on the printed page.

Native productions sometimes create authentication issues as well. Sometimes, accidental modifications to documents produced in native format may occur depending on the settings of features like auto-date. Identical documents printed out of native format can look different because of printer settings or other operator inputs.

Finally, wholesale native productions might also provide access to metadata outside the scope of discovery in the litigation, such as hidden-cell comments and track changes. Litigants don’t always understand that they are granting this access when they produce in native format.

Static Image Production Drawbacks

Production of ESI in static image format has some issues as well. These might include:

Data-to-image conversion costs

No ability to search text

Need to create “text” files and separate DAT files to show associated metadata

Incompatible with complex data like source code and Excel files

Can miss embedded text, hidden comments and speaker notes

Practical Strategies for Choosing Production Formats

Understanding the benefits and challenges of available production formats will allow you to create an e-discovery plan that best meets case strategy and manages e-discovery costs. Some factors to consider include:

Size of the litigation: Big litigation needs a big plan, and parties producing a large amount of data could choose a hybrid approach. Use native format for data in applications like Excel and PowerPoint that don’t convert well. Producing e-mails and Word documents in image format may help reduce costs, and helps to provide transparency about the kinds of information being produced.

Your role in the ligation: Parties who know one set of data may be produced in many different cases may prefer to produce in native format so they don’t need to worry about customizing or modifying the image format every time the documents are produced. Third parties may also choose to utilize native format to limit up-front expenditures.

Applicable litigation and discovery deadlines: Where jurisdiction or court-imposed scheduling sets discovery on the fast track, a native format production might be the best—or in some circumstances, the only—option.

Types and scope of ESI to be produced: Parties with a small amount of data might want to produce in image format for control and simplicity. Counsel dealing with a large amount of data or those who manage multiple cases at the same time should consider performing a detailed cost benefit analysis tied to the expected data volume and case objectives to ensure that the selected production format meets the goals and budgets of each case.